[¶1]Kimberly
Donovan appeals from a judgment of the Superior Court (Cumberland County, Humphrey,
J.) granting the City of Portland's motion
for summary judgment on the ground that the City was immune from suit because
no exceptions to the immunity conferred by the Maine Tort Claims Act, 14
M.R.S.A. §§ 8101-8118 (2003 & Supp. 2003), applied.Donovan contends that the court erred
when it held that the public building exception to the Maine Tort Claims Act, id. § 8104-A(2) (2003), did not apply, and that the Superior
Court incorrectly struck her affidavit in support of her response to the City's
statement of material facts.Because we conclude that the Maine Tort Claims Act bars this action, we
affirm the judgment.

I.STANDARD OF REVIEW

[¶2]"We review the grant of a motion for
summary judgment de novo."Lever
v. Acadia Hosp. Corp., 2004 ME 35, ¶ 2, 845
A.2d 1178, 1179."In our review,
we consider the evidence and reasonable inferences that may be drawn from the
evidence in the light most favorable to the party against whom the summary
judgment has been granted in order to determine if the parties' statements of
material facts and referenced record evidence reveal a genuine issue of
material fact."Id.A
genuine issue of material fact exists when sufficient evidence supports a
factual contest requiring a fact-finder to choose between competing versions of
the truth through a trial.Burdzel
v. Sobus, 2000 ME 84, ¶ 6, 750 A.2d
573, 575.

[¶3]Consistent with our standard of review,
we regard the facts presented by the parties in their statements of material
facts in the light most favorable to Donovan.

II.BACKGROUND

[¶4]On November 9, 1999, Donovan went to
Riverton Elementary School, a public building owned and maintained by the City,
to pick up her children from an after-school program.Donovan arrived at the school at 5:15 p.m.At that time it was dark and foggy.She parked in the U-shaped driveway in
front of the main entrance, and began walking toward an entrance.While walking toward the entrance,
Donovan fell and injured her arm.She had not reached the school building or its stairs when she fell.[1]

[¶5]Donovan filed suit against the City
alleging that the City was "negligent in its ownership, operation, maintenance
or use of equipment, a building or appurtenances thereto, including but not
limited to the maintenance of adequate lighting at the Riverton School
property."There were several
lights attached to the building near the entrance to the school, and Donovan
alleges that the failure to have the lights illuminated was a cause of her
fall.

[¶6]The City filed a motion for summary
judgment supported by a statement of material facts.M.R. Civ. P. 56(h)(1).Donovan opposed the motion and filed an opposing statement of additional
facts in which she referred to and included her own affidavit.M.R. Civ. P. 56(h)(2).The affidavit stated that there were
six lights attached to the school at or near the entrance, but at her earlier
deposition, Donovan had insisted that she did not remember how many lights were
on the building.In response, the
City filed a motion to strike Donovan's affidavit on the ground that it contradicted
her past testimony.

[¶7]After a hearing, the court ordered that
Donovan's entire affidavit be stricken from the record, and granted the City's
motion for summary judgment, holding that the City was immune and that the public
building exception to the Maine Tort Claims Act did not apply.Donovan then brought this appeal.

[¶9]Donovan does not dispute that
governmental immunity extends to sidewalks and parking lots.Nor does she contend that her injuries
were occasioned by a defect in the sidewalk or parking area itself."A governmental entity is not liable
for any defect, [or] lack of repair . . . in any . . . sidewalk, [or] parking
area . . . ."14
M.R.S.A. § 8104-A(4) (2003); see also Kitchen v. City of Calais, 666 A.2d 77, 78 (Me. 1995) (stating that "[a]
parking area constitutes neither a public building nor an appurtenance to a
public building").

[¶10]Instead, Donovan contends that the
public building exception allows her claim to proceed because the lights that
were not illuminated were appurtenant to the public building.An exception to governmental immunity
applies when a governmental entity is negligent in "the construction, operation
or maintenance of any public building or the appurtenances to any public building."14 M.R.S.A. § 8104-A(2) (emphasis added).Thus, according to Donovan, although
the City is immune from liability for any defect in the area where she fell,
when it attached lighting to the public building, it became responsible for any deficiency in that lighting, even in areas where
immunity otherwise applied.

[¶11]We are assisted in the analysis of this
case by the instructive case of Swallow v. City of Lewiston, 534 A.2d 975 (Me. 1987).There, the plaintiff fell on the poorly lit curb between the
walkway and parking area near a public building.Id. at
975-76.She alleged that she fell
because of the inadequate exterior lighting of the building.Id. at 976.We were called upon to determine whether the City of Lewiston had waived
its immunity by maintaining insurance coverage.Id.Lewiston's insurance policy contained
an exclusion providing that the insurance company would not cover injuries
resulting from defects or lack of repair to sidewalks, among other things, and
expressly stated that the exclusion coincided with the immunity provided
pursuant to the predecessor to 14 M.R.S.A. § 8104‑A(4).[2]Swallow, 534 A.2d at 976 & n.2.

[¶12]Noting that Swallow's claim was based
on insufficient lighting, not a disrepair or defect in the sidewalk itself, we
held that "any immunity granted the city for insufficient lighting of a walkway
is created by the general declaration of immunity set forth in section 8103(1)
and is not the subject of an exception
in section 8104 [predecessor to current section 8104-A]."Id. at 977 (emphasis added).[3]The statute then in effect also
included an exception to immunity for a governmental entity's "operation, or
maintenance of any public building or the appurtenances thereto."14 M.R.S.A. § 8104(2) (1980), repealed
and replaced by P.L. 1987, ch. 740, §§
3-4.Thus, we unequivocally
concluded in Swallow that the
lighting over the walkway did not fall within the appurtenance provision of the
public building exception.[4]

[¶13]Our analysis in Swallow clarifies that municipalities are immune from
liability for injuries resulting from lighting deficiencies above sidewalks and
parking areas pursuant to the general provision of governmental immunity, codified at 14 M.R.S.A. § 8103(1),
to which no exception applies.

[¶14]The First Circuit confronted this issue
in a recent Maine case with nearly identical facts: Campbell v. Washington
County Technical College, 219 F.3d 3 (1st
Cir. 2000).There, the First
Circuit affirmed the holding of the United States District Court for the
District of Maine (Brody, J.) that the college was immune from suit for failure
to adequately illuminate a fire lane that was not excepted from governmental
immunity.Id. at 5-6.The fire lane in that case provided the sole passageway to the
second-floor apartments where the plaintiff lived.Id. at 5.Although lights on poles along the lane
had once illuminated the lane, lights attached to the residence hall had
replaced them.Id.When
the plaintiff slipped and fell on the lane, she sought compensation from the college,
claiming the lights on the building failed to illuminate the lane
properly.Id.The
District Court held, and the First Circuit agreed, that because the college was
immune from liability for any defects in the lane,[5]
its liability could not be expanded by assertions of inadequate lighting, even
where the lighting was attached to a public building.Id. at 6.

[¶15]Consistent with our holding in Swallow, and reaching a result that is consistent with the
result in Campbell, we hold that
the Maine Tort Claims Act's public building exception to governmental immunity
does not apply when the plaintiff falls on a sidewalk or parking area while the
exterior lights on a nearby public building are unlit.If we were to hold otherwise,
municipalities would be exposed to litigation in an increasing radius around
any outdoor lighting that the municipalities might provide to ensure that
stairs and other building appurtenances remain safe.Such a holding would run counter to the strict statutory
construction required in interpreting the governmental immunity statutes.See Thompson, 2002 ME 78, ¶ 5, 796 A.2d at 676.

B.Striking
of the Affidavit

[¶16]Donovan also argues that the court
erred in striking her affidavit.Whether or not the court properly struck her affidavit, however, the
facts disputed by the affidavit do not affect our conclusion regarding the
City's immunity.The City is
immune, regardless of the number of lights or the precise location of Donovan's
fall (i.e., on the curb versus on the walkway).Because the facts placed in dispute by Donovan's stricken
affidavit are immaterial to the question of governmental immunity, and because
we affirm that the City isimmune in the
present case, we need not reach Donovan's contention
that the court erred in striking her affidavit.Any claimed error in that regard is harmless.See
M.R. Civ. P. 61.

The entry is:

Judgment
affirmed.

ALEXANDER, J., with whom DANA and
CALKINS, JJ., join dissenting.

[¶17]I respectfully dissent.Upon review of a grant of a motion for
summary judgment, we are obligated to consider the evidence and reasonable
inferences that may be drawn from the evidence in the light most favorable to
the party against whom the summary judgment has been granted in order to
determine if the parties' statements of material facts and referenced evidence
in the record reveal a genuine issue of material fact.Court's opinion, ¶ 2; Lever v.
Acadia Hosp. Corp., 2004 ME 35, ¶ 2,
845 A.2d 1178, 1179; Rogers v. Jackson, 2002 ME 140, ¶ 5, 804 A.2d 379, 380.

[¶18]Kimberly Donovan has the burden of
proving each of the elements of her negligence claim at trial.At the summary judgment stage, however,
our precedents hold that Donovan can defeat a summary judgment and proceed to
trial simply by pointing to unresolved disputes as to material facts.

[¶19]The Maine Tort Claims Act has, since
its inception, contained a public buildings exception to its policy of general
governmental tort immunity.14 M.R.S.A. § 8104-A(2) (2003).[6]The public buildings exception
specifies that any governmental entity, including the City, "is liable for its
negligent acts or omissions in the construction, operation or maintenance of
any public building or the appurtenances to any public building."Id.

[¶20]The evidence of record, cited in the
Court's opinion, establishes that the lights attached to the school building
were either a part of or an appurtenance to that building.On this evidence, there is a dispute of
material fact as to whether the lights attached to the building, not being
illuminated after dark, may have been negligently operated or maintained.The evidence also establishes that
there is a dispute of material fact as to whether the failure of operation of
the lights, leaving the entrance way to the school improperly illuminated, was
a cause of Donovan's injuries and her consequent damages.With disputes as to material facts
remaining as to these three elements, the Maine Tort Claims Act requires nothing
more to state a cause of action, sufficient to defeat summary judgment, under
the public buildings exception.

[¶21]Although Donovan arguably fell in or on
the edge of a parking area, the focus of her claim is not that the City was
negligent in the maintenance of the parking area.Rather, the theory of Donovan's case is that her injury was
caused by the negligent operation or maintenance of the lights, which are
attached to, and thus appurtenances to, the school building.

[¶22]In Swallow
v. City of Lewiston, 534 A.2d 975 (Me.
1987), a plaintiff was injured when she tripped on a curb twenty feet from a
public building.Id. at 976.She
maintained that the area was inadequately lit.Id. The City of Lewiston argued that the
courts should have applied a statute in existence at that time, which indicated
that the government was not liable for defects in sidewalks.Id.We held that
the sidewalk statute did not apply because "[i]nsufficient lighting is not a
defect in the sidewalk."Id. at 977.[7]

[¶23]Because insufficient lighting is not a
defect of the ground that it is intended to light, it may be considered a
defect of the light fixtures themselves.Three times in the last eight years we have held that defects in or
negligent operation of equipment in or appurtenant to a public building can
support a claim for collateral injuries caused by the improperly functioning
equipment, even where the equipment itself does not physically cause the
injury.In Bussell v. City of
Portland, 1999 ME 103, 731 A.2d 862, we
held that improper operation of a sound system could generate liability under
the public buildings exception to immunity in section 8104-A(2).Id. at 863.In Adriance v. Town of Standish, 687 A.2d 238 (Me. 1996), we held that improper operation or warning
regarding a safety gate could generate liability under section 8104-A(2) for a
fall into a transfer station hopper.Id. at 239-42.In Lynch v. Town of Kittery, 677 A.2d 524 (Me. 1996), we held that improper
operation of door locks could generate liability under section 8104-A(2) for an
assault resulting from an unauthorized entry to a school.Id. at 525; see also ABT & A Co., Inc. v.
State, 644 A.2d 460 (Me. 1994) (holding
that section 8104-A(2) did not create liability for negligent supervision, but
created liability only for government "acts in the care or operation of its
buildings and property").

[¶24]If the City of Portland may be liable
for injuries caused by sound emanating from appurtenances to public buildings
as in Bussell, then it may be liable for
injuries caused by light, or lack of light, emanating from appurtenances to public
buildings, as in this case.

[¶25]Donovan has created a dispute as to material
fact that she sustained an injury caused by improper operation or maintenance
of the lights attached to the building—a "negligent act[] . .
. in the . . . operation or maintenance of . . . the appurtenances
to [a] public building."14
M.R.S.A. § 8104-A(2).Accordingly,
the public buildings exception to the Maine Tort Claims Act applies, the
City is not immune from liability, and summary judgment should not have
been granted.
[8]

[¶26]The Court cites Swallow and a First Circuit Court of Appeals opinion, Campbell
v. Washington County Technical College, 219
F.3d 3 (1stCir. 2000),
in support of the proposition that, despite establishing disputes of material
facts as to all three elements necessary to present a cause of action under the
public buildings exception, Donovan is barred from recovery.Swallow does not create such a bar.It was pled and presented under a
different statute with different contested issues.Although Swallow
may stand for the proposition that improper lighting is not a defect in a
walkway, entitling one to recover if her cause of action is based upon a defect
in the walkway, that case is not presented here.Donovan bases her claim upon an asserted defect in an
appurtenance to a public building.Although the lights at issue in Swallow may have been attached to the public building, it
does not appear that the liability claim in Swallow was pled or argued based on a purported defect in
the lights as an appurtenance to the public building.

[¶27]The claim in Campbell likewise is distinguishable.In Campbell, the focus of pleading and argument appears to have
been on improper illumination as a defect in the walkway.Campbell explicitly upheld a District Court ruling that the
public buildings exception did not apply to the walkway at issue and that
"'[i]f the failure to make visible the ice on the fire lane constitutes a
defect, then the college is immune.'"219 F.3d at 6 (quoting Campbell v. Wash. County Tech. Coll., No. 98‑CV-247-B, 1999 U.S. Dist. LEXIS
16842, at *9 (D. Me. Oct. 28, 1999)).There was no suggestion in Campbell that the lights on the building were operated negligently or otherwise
failed to perform.Rather the
claim was that the lights on the building, though performing as they were
intended to perform, inadequately illuminated the walkway creating a defect in
the walkway.Id. at 5.Here, unlike Swallow or
Campbell, Donovan's claim is based on
negligent operation or maintenance of the lights, which were part of, or an
appurtenance to, the school building.Having established all three elements of the claim necessary to recover
under the public buildings exception to the Maine Torts Claim Act, Donovan need
present no more.I would vacate
the summary judgment of the trial court and allow Donovan's claim to proceed to
trial.

____________________

Attorneys for plaintiff:

Marshall J. Tinkle, Esq.

Tompkins, Clough, Hirshon & Langer, P.A.

P O Box 15060

Portland, ME 04112-5060

Neal K. Stillman, Esq.

97A Exchange Street

Portland, ME 04101

Attorneys for defendant:

Lisa Fitzgibbon Bendetson, Esq.

Edward R. Benjamin Jr., Esq.

Thompson & Bowie, LLP

P O Box 4360

Portland, ME 04112

[1]
The parties dispute whether Donovan fell
on the curb or on the walkway.This question of fact is immaterial to the governmental immunity
analysis that finally determines Donovan's tort claim.

[3]
Because insufficient lighting was not
a defect in the sidewalk for the purposes of the predecessor to section
8104-A(4), immunity for the lighting defect was conferred not by that
statute, but by the general grant of immunity to municipalities pursuant
to section 8103(1).Swallow, 534 A.2d at 977.As a result,
we concluded that the coverage exclusion contained in the City's insurance
policy did not apply because the coverage exclusion was limited by
the policy language to being coextensive with the predecessor to section
8104-A(4), and was not coextensive with the general immunity provisions
of the statute.Id.We therefore
concluded that although Lewiston was otherwise immune from liability
for the lighting defect, it had waived its immunity by maintaining
insurance that covered the lighting defect and was, therefore, liable
to the extent of its insurance.Id.

[4]
To hold otherwise in the present case
would require us to overrule our holding in Swallow.

[5]
We concluded in Swallow that Lewiston was immune from suit pursuant to the
general immunity provision of section 8103(1), not pursuant to the
predecessor to section 8104-A(4), because any lighting deficiency
was not a defect in the sidewalk.534 A.2d at 977.By
contrast, in Campbell v. Washington County Technical College,
219 F.3d 3, 6 (1st Cir. 2000), the First Circuit affirmed the District
Court's holding that the public college's immunity arose from section
8104-A(4) because any lighting deficiency was a defect in the lane.We need not fully address this conflict between the cases because
under either analysis, the governmental entity is immune.

[7]
The principal basis for liability in Swallow was the "insurance" exception to the Maine
Tort Claims Act, 14 M.R.S.A. § 8116 (2003).Swallow, 534
A.2d at 977.We vacated
a jury verdict for the plaintiffs on other grounds.

[8]Donovan separately asserts that she
fell on the walkway to the school, and that the walkway was an appurtenance to
the building.This issue need not
be addressed here, as the issue is whether the lights had been properly
operated or maintained.